Rights Theory

Gun Rights

When is it permissible to forbid a person from owning a gun? We’ve talked about gun rights and self-defense around here before, so I thought I would draw your attention to a challenge to gun rights over at the Practical Ethics blog. Jeff McMahan writes,

[Imagine] a situation in which individuals are continuously at high risk of being wrongly attacked and even killed but in which the state aggressively prevents them from having guns, or indeed any means of self-defense at all.  Instead the state compels them to rely for their security on third party defenders who, like the police in domestic society, cannot be continuously present to protect them.  What [gun] advocates say scathingly of the police – “when every second counts, the police are only minutes away” – is often true of these third party defenders.  The central claims of advocates ought to apply most forcefully to people in these conditions.  It seems that such people, who are in constant danger of being attacked or killed, would be safer if they had guns to protect themselves and that the state violates their rights of self-defense by preventing them from having guns and confiscating guns from any who might acquire them.

McMahan goes on to say that this describes conditions in prisons, but that no one would ever say that prisoners should have gun rights for reasons of self-defense. Prisoners don’t have gun rights even though they do retain their rights to defend themselves against wrongful aggressors. And they would not be safer if they had guns, even though prisoners currently must rely solely on guards who cannot effectively protect all of them.

Since each prisoner is more secure in the absence of guns, McMahan argues that their rights of physical security/self-defense are not violated by a gun prohibition in prison. Similarly, if everyone in society would be more secure in the absence of private gun ownership, then rights of self-defense cannot justify gun rights.

Then Alan Buchanan and Lance K Stell posted a reply. They argue that a better case for gun ownership is not that people have rights to own guns in virtue of their rights of self-defense, which require access to guns. Instead, there should just be a presumption against depriving people of the means for defending themselves.

On their account, McMahan’s prison analogy cannot overcome that presumption because we should not presume that prisoners have the same rights as citizens, in part because states are required to provide a higher standard of physical security to prisoners than to the general population. Another reason that presumption is not met is that, if guns cause more wrongful assaults and homicides, gun prohibition may have even worse consequences in society at large, even if the consequences are good in prisons.

But their most powerful point, it seems to me, is that even if banning something had good consequences and prevented wrongdoing on balance; it doesn’t follow that the state should prohibit something just because a prohibition would make people safer, even if it made people much more likely to be wrongfully attacked. This point doesn’t even require that we justify gun rights on the grounds of self-defense. Gun rights can be justified just on the grounds that there should be a really strong presumption against banning stuff that isn’t intrinsically wrong. Owning a gun is not intrinsically wrong, so most people aren’t liable to be coerced by a gun prohibition.

The question we should ask isn’t whether gun rights are necessary for rights of self-defense, it’s whether citizens are liable to be prevented from owning guns. Even if McMahan is right and self-defense cannot justify gun ownership, citizens still wouldn’t be liable to gun prohibitions. Turning to liability, it’s surprising to me that McMahan is seemingly so against domestic gun ownership given his views about just war theory.

First, some context. Traditional just war theorists argued that all soldiers in war should be held to the same standards, a principle known as ‘the moral equality of combatants.’ It also held that combatants should be held to different ethical standards from noncombatants because there should be a presumption that noncombatants are morally immune to attack.

But McMahan convincingly argues that the principle of the moral equality of combatants and the presumption of noncombatant immunity are false because soldiers who are fighting for a just cause are not liable to be killed whereas soldiers who are fighting for an unjust cause are liable. And noncombatants can also be liable to be attacked if they are morally responsible for advancing an unjust cause. One of the mistakes in traditional just war theory was thinking that a person’s institutional role as an agent of the state was morally significant in itself. Common sense morality, when applied to war, shows us that what we really care about is whether someone is liable, not whether he is wearing a uniform.

So return to gun rights. Some members of the state and some citizens use guns to unjustly coerce or assault people. These people are bad guys. Other members of the state and other citizens use guns to protect people, or for recreation, or to decorate their homes. These people are good guys, or at least morally neutral. It seems that as in the case of combat the bad guys are liable to coercive limits on their ability to use guns (e.g. violent felons should not be permitted to own guns) but that non-liable good guys and neutral guys should be permitted to own and use guns.

Why does McMahan maintain that it is not morally significant whether a person is an agent of a state when it comes to combat, but when it comes to guns in the domestic context he suddenly thinks a person’s rights are determined by whether he is wearing a uniform?


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  • CbyN

    I’d venture to say that keeping guns out of the hands of prisoners has more to do with ensuring their continued incarceration and subordination than it does their safety. Something tells me the shakedown would become a lot more interesting if Bubba were packing.

  • Farstrider

    We draw a distinction between uniformed soldiers and noncombatants because it is (or at least, used to be) a bright line that both sides of the dispute can recognize and enforce. Whereas the distinction between an unjust cause and a just cause is much harder, if not impossible, to determine. Indeed, the unjust cause and just cause could change by the battle or even by the minute, depending on what the soldier’s particular orders and mission are at a given time. In other words, the first distinction is useful, the second one is useless. You are wrong to suggest that “common sense morality” should favor a useless distinction over a useful one.

    Your suggestion that “[o]wning a gun is not intrinsically wrong” is also mere assertion, not an argument. It is obviously wrong to be in possession of some dangerous instrumentalities, merely because of the risks they pose to others. For example, “common sense morality” would advise that it is wrong to keep nuclear waste in your backyard, or to put land mines in your front yard, or to keep a rabid tiger as a pet. Even if proper precautions are taken, the risk of injury to third parties is so great that we recognize that it would be wrong to have these things. That same common sense morality would probably advise that owning a car is not wrong, even though the car also poses significant dangers to others if used improperly, presumably because the car also offers significant benefits.

    Here, you’ve just assumed that a gun is more like a car than it is a rabid tiger, and therefore argue that ownership is ok. And therefore it is unsurprising that, having assumed gun ownership is ok, you conclude that the government should not regulate it. The argument is entirely circular.

    • Tedd

      You lost me at the end. How does assuming gun ownership is OK not lead to the conclusion that government should not regulate it (where, as in this context, “regulate” means ban)?

      And surely we don’t actually need to take the time to defend the assumption that a gun is more like a car than a rabid tiger. We’d never accomplish anything if we had to defend such obviously valid assumptions.

      • Farstrider

        I agree that if you assume the facts that favor your position, the facts will support your position. Also, calling those assumptions “obviously valid” will make the assumed facts even more supportive.

        But all the hard work remains to be done. Specifically, you have to draw — and more importantly, justify — a line between rabid tigers and cars. Then you have to place guns on the continuum between those two points to see where they fall. This will require not only philosophy but also some empirical data. And of course, “guns” is an overly broad category, because rifles may fall on a different place on that continuum than hand guns, which may fall on a different place than shotguns.

        The short answer is, owning a gun may be intrinsically wrong, if its benefits do not justify the degree of risk that ownership imposes. Or it may be intrinsically right, if its benefits outweigh its risks. But we cannot just assume away this theoretical and empirical problem in our haste to reach our desired conclusion.

        • Tedd

          Tell you what: If you’ll take the time to address my first point I’ll think about taking the time to defend the obviously true assertion that (with respect to the argument in which you used it) owning a car and owning a gun are more alike than owning a car and owning a rabid tiger.

          • Farstrider

            What first point? That the government should not forbid conduct that is more beneficial than harmful? Of course that is true. In fact, I thought it was a truism and need not be said. Did you think anyone could disagree with that obvious assertion?

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